Solomon Islands

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ADDITIONAL RESOURCES

Background

The Solomon Islands are a group of islands located in the South Pacific Ocean. They fell under British Protectorate in the 1890s. Prior to independence (7th July 1978) the statute law that applied in Solomon Islands came from the United Kingdom. Upon independence the Constitution of Solomon Islands became effective and the legality of statute law which applied in Solomon Islands prior to that date was not affected provided it was not inconsistent with the Constitution, (see sections 4 and 5 of The Solomon Islands Independence Order 1978). The Constitution forms the schedule to the Solomon Islands Independence Order 1978 and become the supreme law of the Solomon Islands when that order came into operation. The government qualifies as a parliamentary democracy[1].

Type of system

Solomon Islands inherited the Common Law tradition, which is derived from English Law. In the common law system, case law (decisions of courts) are an important source of law and expression of legal rules, as decisions become precedent for future interpretation of the law by judges in the same or lower courts. While laws are enacted by the legislature, these are interpreted by the courts.

The system of law in Solomon Islands is an adversarial legal system – the prosecution and defence present their cases to a court for a determination. Courts may indicate issues or points, or raise questions to clarify but it must not do the work of one side (R v Kwatefena [1983] SILR 106; 107).

The duty of the court is to be impartial, hear the evidence on both sides, weigh the evidence and decide the case on its facts (R v Niger Pitisopa (Unrep. Criminal Appeal Case No. 120 of 1999), page 10).

Sources of Defendant's Rights

The sources of criminal law in Solomon Islands currently are as follows:

  • Constitution

The Constitution is the preeminent source of an accused’s rights in the Solomon Islands. The constitutional provisions related to the defendant’s rights are mentioned below.

  • Statutory Law

There are two sources of statute law which are applied by Solomon Islands courts: Acts of the Solomon Islands Parliament[2], and particular Acts of the Parliament of the United Kingdom[3]. Relevant acts referred to include: Court of Appeal Act - Cap 6

Criminal Procedure Code - Cap 7

Correctional Services Act 2007

Correctional Services Regulations 2008

Deportation Act - Cap 58

Evidence Act 2009

Immigration Act - Cap 60

Juveniles Offenders Act - Cap 14

Land and Titles Act - Cap 133

Local Courts Act - Cap 19

Magistrates Courts Act - Cap 20

Penal Code - Cap 26

Police Act - Cap 110

Public Solicitors Act - Cap 30

As described earlier, the Solomon Islands follows the common law tradition, and therefore case law is another source of defendants’ rights. The principle of law in Solomon Islands is that a point of law is decided in a case before the superior courts, binds the lower courts when the lower courts have to consider that point of law in cases before them. However, those courts are only bound to follow the ratio decidendi (the rule of law on which the decision is based) of the respective judgment. However, during the course of a judgment a Court may make judicial comments which do not form part of the legal reasoning in the case. Such comments are referred to as obiter dictum and are not binding on other courts.

  • Customary Law[5]

Customary law is refered to in Schedule 3(3) of the Constitution. In Remesis Pusi v James Leni & others (Unrep. Civil Case No. 218 of 1995) Muria CJ stated: “The Constitution itself recognizes customary law as part of the law of Solomon Islands and its authority therefore cannot be disregarded. It has evolved from time immortal and its wisdom has stood the test of time. It is fallacy to view a constitutional principle or a statutory principle contained in customary law. It is the circumstances in which the principles are applied that vary and one cannot be readily substituted for the other.”

Pre-trial Phase

Protection from police

  • Identity checks

The police have no general powers to conduct identity checks. However, once a person is in lawful custody, any police officer may cause to be taken, for use and record in the registry of the Force, photographs, descriptions, measurements, fingerprints, palm-prints and footprints of any person in lawful custody for any offence punishable by imprisonment, whether such person has been convicted of such offence or not (Section 22(1) Police Act).

  • Right to silence

The Constitution states: “No person who is tried for a criminal offence shall be compelled to give evidence at the trial” (see section 10(7)). In R v Sang (1979) 69 CrAppR 282; [1980] AC 402 [[1979] 3 WLR 263; [1979] 2 AllER 1222; [1979] CrimLR 282] Lord Scarman stated at pages 308 & 455 respectively: “[The right to silence means]‖No man is to be compelled to incriminate himself”. It has been held that a failing by police to warn the accused that he has a right to be silent is a breach of section 10 of the Consitution (R v Nelson Keaviri, Julius Palmer, Patrick Mare Kilatu, Keto Hebala & Willie Zomoro (Unrep. Criminal Case No. 20 of 1995 at pages 8- 9, where it was said: “The breach of the Rule as I see it in this case is not just a defect in the wording of the warning but a fundamental omission in the warning itself which has an impact on the fundamental rights of the accused to remain silent.”) In Kim Kae Jun & the Crew of the Vessel No. 1 New Star v The Director of Public Prosecutions and the Commissioner of Police (Unrep. Civil Case No. 423 of 1999) Palmer J stated at page 4: “The right to remain silent is a constitutional right to which everyone in this country is entitled, citizens and non – citizens alike. Section 3 of the Constitution guarantees the protection of the right to life, liberty, security of the person and protection of the law. Although not specifically mentioned, that provision, in its broad application, must accord a right to silence to an accused, detained person or a suspected person who is under investigation. Once such person exercised his or her constitutional right to remain silent he or she cannot be compelled to give his statement to anyone unless otherwise ordered by the Court.” In Awoda v The State [1984] PNGLR 165 the Supreme Court held: “In criminal proceedings the court may request but cannot order counsel to disclose his/her defence”.

  • Confessions

The Evidence Act 2009 states that confessions (an admission made at any time by a person accused of an offence stating or suggesting that the person committed the offence) are not admissible unless the court is satisfied beyond reasonable doubt that the admission was voluntary (section 168(2)).In addition, pursuant to section 169, a court may refuse to admit a confession if it is adduced by the prosecution and the court considers it would be unfair to an accused to use the evidence.

  • Stops and Frisks, Search and Seizure

Section 9 of the Constitution states: “(1) Except with his consent, no person shall be subject to the search of his person or his property or the entry by others on his premises.” However the Constitution provides that there will be no inconsistency with the Constitution if the law makes provision for searches in the interests of defence, public safety, to protect the rights or freedoms of others, to authorize an officer of the Government, to carry out court orders or to carry out investigations. Section 84(3) of the Penal Code states: “Any police officer who has reason to believe that a weapon is being concealed or carried on any person or vehicle in a restricted area or place may, without warrant or other written authority, search and detain any such person or vehicle and take possession of such weapon.”

Sections 14 to 17 of the Criminal Procedure Code provide for search and seizures of arrested people or suspects. Section 14 states that a person may be searched upon arrest, provided that there are reasonable grounds for believing that the arrestee has about his person any article or object related to the offense which he is alleged to have committed. However “the right to search an arrested person does not include the right to examine his private person”. Any property which has been taken shall be restored if the person is released and not prosecuted. Section 15 deals with searches and seizures in connection with offenses against the customs laws.

There are additional provisions relating to females who are searched. Section 16 of the Criminal Procedure Code provides that the search shall be made by another woman.

Common law holds that when conducting a search police officers should explain to the person to be searched the reason for the search, unless the circumstances rendered the giving of the reasons unnecessary or impracticable (Brazil v Chief Constable of Surrey [1983] 1 WLR 1155 & Lens v King [1988] WAR 76). Furthermore, the extent of any search must be reasonable, having regard to the circumstances that exist for the search at the time (Frank Truman Export Ltd v Metropolitan Police Commissioner [1977] 1 QB 952 at pages 965 – 966).

  • Arrest

Section 5(1) of the Constitution makes it clear that a person’s liberty is to be deprived only where it is authorized by law, which is to apply in such circumstances as set out in paragraph (f). Section 5 of the Constitution sets out the general structure or framework in which a person’s liberty may be deprived, while acts like the Criminal Procedure Code contain more specific details. (Baia Takoa v R (Unrep. Criminal Appeal Case No. 16 of 1998) at page 2).

One of the key protections in the Constitution is that a person is to be informed as soon as reasonable practicable of the reasons for the arrest or detention (section 5(2) of the Constitution). As stated in Billy Gatu v R (Unrep. Criminal Case No. 93 of 1993), the reason why it is important to inform the accused why he has been arrested is because the lawfulness of that arrest and subsequent detention is dependent on the reasons for the arrest. An arrest and subsequent detention of any person can only be effected in accordance to law. Section 5(1)(f) of the Constitution allows a police officer to arrest and detain an accused person ―upon reasonable suspicion of his having committed, or being about to commit, a criminal offence under the law in force in Solomon Islands.

At the time of the arrest, a police officer need not have to know or be able to specify the specific details of the particular offence for which he/she had in mind (Chapman v Director of Public Prosecutions (1989) 89 CrAppR 190; [1988] CrimLR 843). At the time of advising the defendant the reason he/she was arrested, the arresting officer needs only to advise the defendant the reason why he/she was arrested by outlining what the defendant did or did not do that was illegal (see Abbassay & another v Commissioner of Police of the Metropolis & others [1990] 1 WLR 385; [1990] 1 AllER 193; (1990) 90 CrAppR 250). If such information is not provided at the time of arrest, it is to be provided “as soon as reasonably practicable” at the police station (see R v Kulynycz [1970] 3 AllER 881; [1970] 3 WLR 1029; [1971] 1 QB 367; (1971) 55 CrAppR 34).

  • Enforcing the rules (exclusionary rule, nullity and other procedures to protect against illegal police procedures)

Section 138 of the Evidence Act provides that in a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to an accused. In addition, the court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might be unfairly prejudicial to a party or be misleading or confusing (section 137 Evidence Act). Furthermore, evidence obtained improperly or in contravention of any law; or in consequence of an impropriety or of a contravention of any law is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained (section 170 Evidence Act).

  • Lineups and other identification procedures

A number of identification procedures are provided for in Solomon Islands legislation, being: a)an identification parade; b)a photo board containing at least 12 photos of people of similar appearance, 1 of whom is the person suspected of having committed the offence; c)videotape; d)computer generated images. The procedures for each of these identification procedures are set out in section 81-86 of the Evidence Act. Particular protections include that each witness must view the identification parade separately, the suspect may choose and change his/her position in the parade, a legal practitioner may be present during a parade, must ensure that no photographs are marked on a photo board. In addition, voice identification evidence is inadmissible unless the prosecution proves on the balance of probabilities that the circumstances in which the identification was made were likely to have produced a reliable identification (section 86 Evidence Act).

During detention

  • Freedom from prolonged pre-trial detention

A person arrested for a charge other than murder or treason, is to be brought before court within 24 hours, or be released (unless the offence is for murder or treason). Where any person is retained in custody he shall be brought before a Magistrate's Court as soon as practicable (Section 23 Criminal Procedure Code).

In addition, the Constitution states that every person shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law. An accused must have adequate time and facilities in order to prepare his defense (see sections 10(1), 2(c) and 10(8) of the Constitution).

If the accused person is not tried within a reasonable time, they are to be released (albeit it with attached conditions if necessary, see section 3 of the Constitution). A detained person can make an application to be granted bail. If this is unsuccessful, he/she has the right to appeal to the High Court (see section 283 of the Criminal Procedure Code).

There is also a common law presumption in favour of bail. In R v Perfili (Unrep. Criminal Case No. 30 of 1992) Muria ACJ held at page 3: “The common law presumption of innocence is embedded under the Constitution of Solomon Islands and it is done without qualification […]. Thus prima facie, an accused person is entitled to bail.” In John Mae Jino & John Gwali Ta‟ari v R (Unrep. Criminal Appeal Case No. 172 of 1999) Palmer J held at page 1: “Bail is a right protected by law (section 106 of the Criminal Procedure Code). The granting of bail by the court however is discretionary. That means it is not to be unreasonably withheld.”

The Court will consider:

- Whether the defendant will abscond on bail (R v Kong Ming Khoo (Unrep. Criminal Case No. Unknown of 1991)

- The nature of the accusation or ‘seriousness’ of the alleged offence (R v Philip Tagea, Amos Teikagei & Damaris Teikagei (Unrep. Criminal Case No. 14 of 1995)

- The nature of the evidence to be adduced (R v Kong Ming Khoo (Unrep. Criminal Case No. Unknown of 1991)

- The severity of the punishment which conviction would entail (R v Kong Ming Khoo (Unrep. Criminal Case No. Unknown of 1991)

- Whether the defendant will interfere with prosecution witnesses and police investigation (Perfili v R (Unrep. Criminal Case No. 30 of 1992)

- The possibility of a repetition of the offence or of further offences (R v Kong Ming Khoo (Unrep. Criminal Case No. Unknown of 1991)

- The length of any delay (R v Perfili (Unrep. Criminal Case No. 30 of 1992)

- The family needs of the defendant (R v Philip Tagea, Amos Teikagei & Damaris Teikagei (Unrep. Criminal Case No. 14 of 1995)

Generally on a fresh application for bail the Court should only consider any new considerations which were not before the court on the previous occasion when bail was refused (see R v Nottingham Justices, Ex parte Davies [1980] 2 AllER 775; [1981] QB 38; (1980) 71 CrAppR 178; [1980] 3 WLR 150).

Prisoners are also to be placed in the least restrictive conditions suitable to their classification (section 32 of the Correctional Services Act).

  • Freedom from punishment

Section 7 of the Constitution states: “No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.”

In addition, the Correctional Services Regulations specifies in section 53 that: “No prisoner may be subjected, by way of punishment, to:

a) corporal punishment in any form;

b) the use of instruments of restraint;

c) withdrawal of basic food rations/basic toiletry supplies; or

d) denial of visitation rights or the right to communicate with friends, family, or the religious representative.”

  • Right to counsel

Section 92 of the Constitution established the Public Solicitor, whose function is to provide legal aid, advice and assistance to persons in need in such circumstances, and in particular to any person in need who has been charged with a criminal offence. Section 4 of the Public Solicitors Act sets out the particular criterion to be used in the grant of legal aid.

In addition, prisoners have the right to access to legal representatives, including the right to communicate in confidence and privacy (section 40(1) Correctional Services Act).

In R v Lemsatef [1977] 1 WLR 812 Lawton LJ stated at page 815: “It is one of the principles of practice that if a man in custody wants to consult a solicitor he can do so. He is entitled to do at an early stage of the investigation. The only qualification is that he cannot delay the investigation by asking to see a solicitor if the effect of so – asking would be – and I use the words of the rules – to cause ―unreasonable delay or hindrance … to the process of investigation or the administration of justice”. Section 178 of the Criminal Procedure Code states: “Any person accused of an offence before any criminal court, or against whom proceedings are instituted under this code in any such court, may be defended by an advocate.”

  • Right to habeas corpus

Pursuant to section 312 of the Criminal Procedure Code, the High Court has the power to issue direction of the nature of habeas corpus, specifically:

(a) that any person within the limits of Solomon Islands be brought up before the court to be dealt with according to law;

(b) that any person illegally or improperly detained in public or private custody within such limits be set at liberty;

(c) that any prisoner detained in any prison situate within such limits be brought before the court to be examined there examined as a witness in any matter pending or to be inquired into in such court;

(d) that any prisoner detained as aforesaid be brought before a court martial or any commissioners acting under the authority of any commission from the Governor-General for trial or to be examined touching any matter pending before such court martial or commissioners respectively;

(e) that any prisoner within such limits be remove from one custody to another for the purpose of trial; and

(f) that the body of a defendant within such limits be brought in on a return of cepi corpus to a writ of attachment.

  • Conditions of confinement

Prisoners are to be placed in the least restrictive conditions suitable to their classification (section 32 Correctional Services Act).

Pursuant to section 40(1) of the Correctional Services Act, a prisoner in a correctional centre has the following rights -

a) to have available adequate bed and/or bedding;

b) access to washing facilities for personal hygiene;

c) access to safe and clean drinking water and food;

d) to have natural or artificial light;

e) to have sanitary facilities and products:

f) to have clean and sufficient clothing;

g) to have access to legal representatives, including the right to communicate in confidence and privacy;

h) to have access to medical care and treatment;

i) to receive and send written correspondence; and

j) to the extent appropriate to their classification, to have access to family, friends and members of their community.

In addition, the Commissioner’s responsibilities include providing effective and appropriate rehabilitation services and ensuring that prisoners are provided with facilities, programs and services designed to encourage rehabilitation (section 7 Correctional Services Act). To the extent that it is reasonably practicable, all prisoners are to be given opportunities to develop personal and employment skills to assist their effective rehabilitation and reintegration into the community (section 59 Correctional Services Act).

Each prisoner shall be permitted a minimum of one hour of exercise time outside his or her cell each day (section 130 Correctional Services Regulations).

  • Immigrant detention

Immigrant detention is provided for in section 14 of the Immigration Act and section 6 of the Deportation Act. A magistrate may make an order that any person who is a prohibited immigrant or a member of a prohibited class be detained in such manner as he may direct, for a period not exceeding 28 days, before that person is deported.

  • Right to medical and mental health care in prison

The Correctional Service in Solomon Islands must ensure that all prisoners are assessed for urgent welfare, medical or psychiatric needs; and provided with suitable accommodation or services for their health or welfare (section 34, 35(3) of Correctional Services Act). Detainees have a right access medical care and treatment (section 40(1) Correctional Services Act).

Medical treatment and health services is provided for in Part 6 of the Correctional Services Act. Section 43 states that health care facilities and primary care services shall be provided for prisoners to a community standard while also taking into account the special circumstances and health care needs of prisoners. Arrangements shall be made for the provision of other medical and related services, in accordance with any relevant policy or program of the Ministry of Health, including -

a) appropriate dental treatment, which shall not be confined to extractions;

b) public awareness and education programs;

c) vaccination programs or programs for the treatment or prevention of certain diseases; and

d) support services for infants and mothers, where infants are permitted to remain in the confines of a correctional centre.

There are no specific provisions relating to mental health care for detainees.

  • Restriction of rights

All prisoners shall be given information about their duties, responsibilities and obligations while in custody, and correctional centre offences shall be made known to prisoners (sections 35(2) and 51(1) Correctional Services Act).

Section 19 of the Correctional Services Regulations states that the Commandant shall ensure that prisoners are able to make complaints and applications to the Commandant.

  • Women's rights in prison

Females have a right to be classified and kept separately to males (section 34(2) of Correctional Services Act, section 99 of Correctional Services Regulations). These classification procedures are applied so as to facilitate appropriate arrangements for the accommodation and other needs of female prisoners, as well as others specified groups (section 36(b) Correctional Services Act, section 99 Correctional Services Regulations).

Rights of the Accused

At Trial

  • Double jeopardy

Section 10(5) of the Constitution states: “No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence, save upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.” See also section 121 of the Criminal Procedure Code and Section 3 of the Traffic Regulations, which contain similar rights.

The onus is on the defendant to prove on the balance of probabilities that he/she has been previously convicted or acquitted of the offence charged, see R v Coughlan & Young (1976) 63 CrAppR 33.

However there is some doubt over the extent of the protection against double jeopardy. Section 123 of the Criminal Procedure Code states: “A person convicted or acquitted of any act causing consequences which together with such act constitute a different offence from that for which such person was convicted or acquitted may be afterwards tried for such last – mentioned offence, if the consequences had not happened or were not known to the court to have happened at the time when he was acquitted or convicted.” Section 20 of the Penal Code states: “A person cannot be punished twice either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof he causes the death of another person, in which case he may be convicted of the offence of which he is guilty by reason of causing such death, notwithstanding that he has already been convicted of some other offence constituted by the act or omission.” These sections appear inconsistent with section 10(5) of the Constitution.

  • Legality principle

Section 10(4) of the Constitution states that: “No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.”

  • Presumption of innocence

Section 10(2)(a) of the Constitution states: “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty.”

In David Kio v R (Unrep. Criminal Appeal Case No. 11 of 1977) Davis CJ stated at page 4: “Every case must be tried only on the evidence in that case, and in every case the accused person must be treated as innocent until the contrary is proved on the evidence. It is quite wrong for a Magistrate to base his finding of the accused‘s guilt on his own previous knowledge of the accused. The burden of proving the accused‘s guilt is always on the prosecution whose duty it is to satisfy the court of the accused‘s guilt. It is not for the accused to prove his innocence and in every case, no matter what his record, the accused must be considered by the court as innocent until he has been proved guilty.”

  • Standards of proof and standards for conviction

Section 12 of the Evidence Act states in part:

1. “In a criminal proceeding the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt.

2. In a criminal proceeding where the onus of proof is on the accused, the court is to find the case of an accused proved if it is satisfied that the case has been proved on the balance of probabilities.”

It is thus the duty of the prosecution in most cases to prove the accused’s guilt beyond reasonable doubt. In R v Badash (1917) 13 CrAppR 17 Darling J, stated at pages 19 – 20: “The truth is that it is always for the prosecution to satisfy the jury by proof that the prisoner is guilty. It is never (with certain statutory exceptions) for the prisoner to prove that he is innocent; the onus of proof remains on the prosecution. The prisoner may often in setting up a defence fail to convince the jury, and the jury may even think that his story is wholly untrue; if that is so, it is a great prejudice to him; but it will not do to tell the jury that if they do not believe the prisoner they must convict him, because that leaves out of account the question of the burden of proof.”

In R v Wilson Iroi (Unrep. Criminal Case No. 17 of 1991) Muria J stated at page 3: “I remind myself that the burden is on the prosecution throughout to satisfy the Court beyond reasonable doubt of the guilt of the accused. If there is doubt, slight though it might be, the accused must be given the benefit of that doubt. The overriding guiding principle in all criminal trials must be that a person charged with a criminal offence must be presumed to be innocent until proved guilty or has pleaded guilty. That principle is enshrined in section 10(2)(a) of the Constitution […].”

However, upon reviewing all the evidence, the prosecution does not have to make the Court feel certain of the defendant‘s guilt (see Miller v Minister of Pensions [1947] 2 AllER 372, at pages 373 – 374).

  • Right to compulsory process

Section 10(2) of the Constitution provides (in part): “Every person who is charged with a criminal offence […] shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court in the same conditions as those applying to witnesses called by the prosecution”.

In addition, an accused has the right to call his/her own witnesses (see, for example, section 216 of Criminal Procedure Code).

Section 133 of the Criminal Procedure Act provides that any court may, at any stage of any inquiry, trial or other proceeding, summon or call any person as a witness, or examine any person in attendance though summoned as a witness, or recall and re-examine any person already examined, and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case. If a court is satisfied that a witness will not attend in obedience to a summons to witness, it may issue a warrant to compel the witness to give evidence, see sections 128 to 130 of the Criminal Procedure Code and sections 60 and 61 of the Magistrates’ Courts Act.

  • Right to confront witnesses

Section 10(2)(e) of the Constitution states: “Every person who is charged with a criminal offence […] shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution.”

The court procedure (described below) provides the opportunity to examine witnesses called by the prosecution.

  • Right to counsel

Section 10(2) of the Constitution states (in part): “Every person who is charged with a criminal offence – […] (c) shall be given adequate time and facilities for the preparation of his defence; (d) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice”. See also above, Right to counsel in the pre-trial phase.

  • Right to a fair trial

Furthermore, the requirement that a court be independent and impartial is outlined in section 9 of the Magistrates Court Act, which states: “Where a Magistrate is a party to any cause or matter, or is unable, from personal interest or any other sufficient reason, to adjudicate on any cause or matter, the Chief Justice shall direct some other Magistrate to act instead of such aforesaid Magistrate for the hearing and determination of such particular cause or matter, or shall direct that such cause or matter shall be heard and determined in a Magistrates‘ Court in any other district”.

In addition, section 67(1) of the Criminal Procedure Code (Ch. 7) states (in part):

“Whenever it is made to appear to the High Court – (a) that a fair and impartial inquiry or trial cannot be held in any Magistrates‘ Court; [...] it may order –

i. that any offence be inquired into or tried by any court not empowered under the preceding sections of this Part but in other respects competent to inquire into or try such offence; or

ii. that any particular criminal case or class of cases be transferred from a Magistrates‘ Court to any other Magistrates‘ Court; or

iii. that an accused person be committed for trial to itself.”

In addition, every person who is charged with a criminal offence has the right to an interpreter (without charge) if he cannot understand the language used at the trial, and, with certain exceptions, a trial shall not take place in his absence (section 10(2) of the Constitution).

  • Right to notice of charges

Section 10(2) of the Constitution states in part: “Every person who is charged with a criminal offence --- […] (b) shall be informed as soon as reasonably practicable, in detail and in a language that he understands, of the nature of the offence charged; […] shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the charge”.

  • Right to non self-incrimination

The right to silence in section 10 of the Constitution is interlinked with the right not to self-incriminate. In R v Sang (1979) 69 CrAppR 282; [1980] AC 402 [[1979] 3 WLR 263; [1979] 2 AllER 1222; [1979] CrimLR 282] Lord Scarman stated at page 308: “[The right to silence means] No man is to be compelled to incriminate himself”.

In Kim Kae Jun & the Crew of the Vessel No. 1 New Star v The Director of Public Prosecutions and the Commissioner of Police (Unrep. Civil Case No. 423 of 1999) Palmer J stated at page 4: “The right to remain silent is a constitutional right to which everyone in this country is entitled, citizens and non – citizens alike. Section 3 of the Constitution guarantees the protection of the right to life, liberty, security of the person and protection of the law. Although not specifically mentioned, that provision, in its broad application, must accord a right to silence to an accused, detained person or a suspected person who is under investigation. Once such person exercised his or her constitutional right to remain silent he or she cannot be compelled to give his statement to anyone unless otherwise ordered by the Court.”

  • Right to a speedy trial

Section 10(1) of the Constitution states: “If any person is charged with a criminal offence, then, unless the charge is withdrawn, that person shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.”

Four factors in determining whether a defendant had been afforded a fair hearing “within a reasonable time” are: [i] the length of the delay; [ii] the reason for the delay; [iii] the defendant‘s assertion of his/her right; and [iv] any prejudice to the defendant” (see Director of Public Prosecutions v Rolland Kimisi (Unrep. Civil Case No. 67 of 1990)).

  • Right to trial by jury

There is no right to a trial by jury in Solomon Islands. Instead, decisions are made by magistrates/Judges who may consider the opinions of assessors (section 275 of the Criminal Procedure Code). The role of assessors is advisory only - the judge must listen to their opinions but retains the power to make the final decision.

In Sentencing

  • Capital punishment

Solomon Islands formally abolished the death penalty in 1978 when it was not included as a permitted punishment in the Penal Code after independence in 1978.

  • Ex post facto punishment

Section 10(4) of the Constitution states that: “No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.”

  • Freedom from torture, cruel or unsual punishment

Section 7 of the Constitution states that no person shall be subjected to torture or to inhuman or degrading punishment or other treatment. In addition, section 53 of the Correctional Services Regulations provides that “No prisoner may be subjected, by way of punishment, to

a) corporal punishment in any form;

b) the use of instruments of restraint;

c) withdrawal of basic food rations/basic toiletry supplies; or

d) denial of visitation rights or the right to communicate with friends, family, or the religious representative.”

  • Right to appeal

Solomon Islands legislation provides for automatic rights of appeal. These are found in Part IX of the Criminal Procedure Code and Part IV of the Court of Appeal Act and are described further below.

  • Right not to be fined excessively

Section 25 of the Penal Code states that where no sum is expressed to which the fine may extend, the amount of the fine which may be imposed is unlimited, but shall not be excessive.

In addition, section 26 contains limits on terms of imprisonment to which a person may be sentenced by a court in default of payment of a fine.

Court Procedure

Following the tradition of the United Kingdom, Solomon Islands has a two-tiered justice system: Superior courts have a more elaborate procedure for more serious offences, while magistrates’ courts have simplified procedures for less serious offences. In addition to trying some offences themselves, magistrates also perform a screening role in relation to offences to be tried in superior courts. A ‘preliminary inquiry’ is conducted by a magistrate to determine whether an accused should be committed for trial in the higher court.

There are 5 types of courts in Solomon Islands: Court of Appeal[6], High Court[7], Magistrates’ Courts[8], Local Courts[9], A Juvenile Court[10]

Pretrial procedure

Once a person is charged with an offence, he/she will appear in the Magistrate’s court. If the offence falls within the jurisdiction of the High Court, the person must firstly be committed for trial.

Section 56 of the Criminal Procedure Code states: “The High Court may inquire into and try any offence subject to its jurisdiction at any place where it has power to hold sittings: Provided that no criminal case shall be brought under the cognizance of the High Court unless the same shall have been previously investigated by a Magistrate’s Court and the accused person shall have been committed for trial before the High Court.”

Where a Magistrate believes that an offence must or should be tried by the High Court, the Magistrate shall either commit the person for trial to the High Court [short form] provided [1] he/she considers it appropriate so to do having regard to the circumstances of the case; and [2] no application has been made to the contrary by the defendant or his/her advocate or by a public prosecutor; or hold a “Preliminary Investigation / Inquiry” [long form] in accordance with section 212 of the Criminal Procedure Code.

The short form of the preliminary inquiry is as follows (see sections 211-216 of the Criminal Procedure Code). The magistrate will:

a) read over and explain to the defendant the charge in respect of which the Preliminary Investigation / Inquiry is being held;

b) explain to the defendant that he/she will have an opportunity later on in the Preliminary Investigation / Inquiry of making a statement if he/she so desires;

c) explain to the defendant the purpose of the Preliminary Investigation / Inquiry;

d) require the defendant to plead to the charge against him/her and record his/her plea, if any.

e) irrespective of the plea entered or whether a plea is entered, require the prosecution to tender to the court the statements of any witness whom it is relying on to prove the charge/s and any exhibits;

f) read or cause to be read, every such statement to the defendant if he/she is unrepresented, but otherwise unless requested to do so by the defendant‘s lawyer;

g) ask the defendant whether he/she desires to call witnesses on his/her own behalf;

h) take the evidence of any witnesses called by the defendant and such witnesses, other than those giving solely Character Evidence, shall be bound by recognisance to appear and give evidence at the trial of the defendant.

i) adjourn the Preliminary Investigation / Inquiry if the defendant states that he/she has witnesses to call but that they are not present in court, provided he/she is satisfied that: [a] the absence of such witnesses is not due to any fault or neglect of the defendant; and [b] there is likelihood that such witnesses could, if present, give material evidence on behalf of the defendant.

j) issue process or takes other steps to compel the attendance of such witnesses and give evidence;

k) give an opportunity to the defendant or his/her advocate to address the court;

l) give the prosecution the right of reply;

m) make an order regarding the retention of exhibits

n) commit the defendant for trial to the High Court if he/she is satisfied that there is sufficient grounds to do so after having considered the evidence;

o) require the defendant to plead to the charge/s and record his/her plea.

p) ask the defendant whether he/she: intends to call witnesses at the trial, other than those called in the course of the Preliminary Investigation / Inquiry; and

q) upon committing the defendant for trial to the High Court, either: admit him/her to bail; or send him/her to prison for safe-keeping.

The long form is the same as the short form, with some significant differences as to the taking of evidence. In the long form, instead of reading statements of witnesses, the magistrate will, in the presence of the accused, take down in writing, or cause to be taken down, the statements on oath of those who know the facts and circumstances of the case, referred to as depositions, including any exhibits. The magistrate will then give an opportunity to the defendant to cross – examine each witness called by the prosecution. All answers given in cross-examination will be recorded and each witness will sign or attest the deposition. The magistrate will then ask whether he/she wishes to make a statement on oath; and if so, cause everything which the defendant says, either by way of statement or evidence to be recorded in full and shown or read over to the defendant, to be signed by the defendant. The defendant may then be committed to trial in the High Court as per the short form procedure.

In R v Sethuel Kelly & Gordon Darcy (Unrep. Criminal Case No. 2 of 1996) Lungole - Awich J stated at pages 3 – 4: “A fundamental principle in the English Common Law system on which the system in Solomon Islands is based, is that in trial on a charge of felony, generally the more serious offences, the accused must be made to know the serious charge against him and the facts upon which the charge is based, well before his trial. That affords him ample time to prepare his case to oppose the serious charge. That advance knowledge is conveyed to him in proceedings known as preliminary inquiry. It might take the form of calling witnesses or simply reading the charges and depositions and giving copies to accused. The magistrate is required to protect the accused by discharging him if the magistrate does not find sufficient evidence upon which to commit accused to the High Court on the serious charge for trial there. That of course is subject to application of the DPP under section 217 of the CPC. That process protects accused from baseless serious charges.”

The purpose of a preliminary Investigation/Inquiry is to determine whether there is a sufficient case or evidence or grounds to put the defendant on his/her trial by the High Court, (see sections 211, 212 & 215 of the Criminal Procedure Code).

The prosecution need not call all the witnesses who might be called on a trial, see Epping & Harlow Justices, Ex parte Massaro [1973] QB 433; (1973) 57 CrAppR 499 [[1973] 2 WLR 158; [1973] 1 AllER 1011; [1973] CrimLR 109] at pages 435 and 501 respectively.

If a Court considers that in the interests of justice it is necessary to call a particular witness, it may do so without the consent of either the prosecution or defence, see Section 133 of the Criminal Procedure Code and R v Wallwork (1958) 42 CrAppR 153.

In Trial

The procedure for a trial is generally as follows:

1. Formal opening of the Court

2. Plea of Not Guilty (the charge is read out to the accused, he/she is asked whether he admits or denies the truth of the charge, see section 195 of the Criminal Procedure Code)

3. Opening addresses (both the prosecutor and the accused are entitled to address the court at the commencement of the case, see section 200 of the Criminal Procedure Code. These are generally made in complex cases.)

4. Formal admissions (admission as to particular facts may be made by either the prosecution or the accused, see section 181 of the Criminal Procedure Code. Admissions may be made in court or in writing beforehand. The party is then bound by this admission made.)

5. Examination of prosecution witnesses (see section 196 of the Criminal Procedure Code. The court begins with hearing the witnesses for the prosecution. First the witness will make an oath or affirmation. Then the examination will start with examination-in-chief, where the prosecution will draw out the information from the witness, using open, non-leading questions. Then the defence may cross-examine the witness, to show that the witness should not be believed or to get further information. The questions in cross-examination must not be irrelevant, repetitive, or go beyond what was raised in examination-in-chief. Re-examination is then made by the prosecution to explain any matters arising out of the cross-examination.)

6. Amendments (Section 201 of the Criminal Procedure Code states that where, at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case. The accused may then recall any witnesses for further examination.)

7. Submission of no case to answer (in accordance with section 197 of the Criminal Procedure Code, the defence may submit that there is no case to answer because there is either no or insufficient evidence to prove an element of the charge. Therefore, if the submission of no case to answer is successful, the defendant will not be required to answer the charge or make a defence.)

8. The defence (see section 198 of the Criminal Procedure Code. The court informs accused of right to give evidence and asks the accused whether he/she has any witnesses to call. Defence witnesses are then examined as per procedure for prosecution witnesses above.

9. Re-opening (in accordance with section 199 of the Criminal Procedure Code, if the accused person adduces evidence in his defence introducing new matter which the prosecutor could not have foreseen, the court may allow the prosecutor to adduce evidence in reply to rebut the matter.)

10. Final addresses (following a final address or closing submission by the prosecution, the defence has a right to also make a final address or closing submission. See section 200(2) of the Criminal Procedure Code.)

11. Decision (the accused may be acquitted or convicted of the offence for which he/she has been charged, a lesser offence, or with attempting to commit the offence, see sections 159 and 160 of the Criminal Procedure Code.

Sentencing

Section 8(1) of the Criminal Procedure Code states “Any court may pass any lawful sentence combining any of the sentences which is authorised by law to pass.”

Section 10(4) of the Constitution stipulates that court should not impose a penalty in excess of the maximum penalty prescribed by law. Pursuant to section 41 of the Penal Code, if no punishment is specifically provided in that Code for any misdemeanour, “it shall be punishable with imprisonment for a term not exceeding two years or with a fine or with both”. Sentencing may have a number of purposes, including the public interest (protection of the public, retribution and deterrence of the appellant and others from committing offences of a similar sort) and reformation of the individual offender (Anna Langley v R (Unrep. Criminal Appeal Case No. 17 of 1978)).

When sentencing, the court has to consider the aggravating and mitigating factors. Those factors must include an accused’s personal circumstances, (see R v Christopher Saungao (Unrep. Criminal Case No. 30 of 1995; at page 10). Customary considerations should be taken into account by a court when sentencing, in appropriate circumstances, see Berekame v DPP [1985 – 86] SILR 272.

Depending on the circumstances the options in sentencing which may be imposed include imprisonment, suspended sentences, fines, good behavior bond, binding over order, residence order, compensation order, absolute or conditional discharge, police supervision, property orders, or disqualification of drivers licenses (see for example Part VI of the Penal Code).

Section 35 of the Magistrates’ Courts Act also provides for reconciliation. Chief Justice Ward has issued a practice direction (Practice Direction No. 1 of 1989) in regards to reconciliation under this section.

Appeal

A person convicted on a trial in a superior has a right of an appeal against a conviction on a question of law, but must obtain leave to appeal on other matters or appeal against a sentence. Appeals can be made to the High Court or Court of Appeal.

  • Appeals to the High Court

Section 45 of the Magistrates Courts Act states: “Appeals in criminal cases shall lie to the High Court from any Magistrates‘ Court in accordance with any other Act for the time being in force relating to criminal procedure and of any Rules of Court made under the provisions of section 90 of the Constitution.” For more details on appeals to the High Court, see Section 283 of the Criminal Procedure Code. An appeal to the High Court may be a matter of fact as well as a matter of law. Both the person convicted and the Director of Public Prosecutions can file an appeal.

However, section 284 of the Criminal Procedure Code prevents an appeal against conviction in cases where an accused person has pleaded guilty, or where a Magistrates’ Court has passed a sentence of a fine not exceeding ten dollars only.

Either party has one month from the date of determination to apply to appeal against a decision in the Magistrates’ Court (see section 298 of the Criminal Procedure Code).

  • Appeals to the Court of Appeal

The Court of Appeal was established by virtue of section 85 of the Constitution. Sections 20 to 22 of the Court of Appeal Act outlines in what circumstances the prosecution or a person convicted may appeal a decision of the High Court. A person convicted on a trial held before the High Court may appeal against his conviction on any ground of appeal which involves a question of law alone or involving a question of fact if certain conditions are met (see Section 20).

The prosecution also has a right to appeal to the Court of Appeal in the conditions provided for in Section 21(1) of the Court of Appeal Act. Pursuant to section 22 of the Court of Appeal Act, any party to an appeal from a Magistrates’ Court to the High Court may appeal, against the decision of the High Court to the Court of Appeal on any ground of appeal which involves a question of law only (not including severity of sentence), provided that no appeal shall lie against the confirmation by the High Court of a verdict of acquittal by a Magistrate‘s Court. Pursuant to section 26 of the Court of Appeal Act, a person must give notice of appeal or of his application for leave to appeal within 30 days of the date of conviction.


Notes et références

  1. Source : CIA World Factbook 2012
  2. See section 59 of the Constitution.
  3. See Schedule 3(1) of the Constitution. And also R v Ngena [1983] SIRL 1 for the interpretation of « acts of general application » refered to in Section 1, Schedule 3 of the Constitution.
  4. For the application of the principles and rules of the common law, See the Constitution, Schedule 3(2), Schedule 3(4), and the Practice Direction No. 1/81 issued by Daly CJ on 4 June 1981.
  5. See Schedule 3(3) of the Constitution.
  6. Court of Appeal are established by virtue of section 85 of the Constitution. For jurisdiction, see Sections 22-22 of the Court of Appeal Act.
  7. The High Court is established by virtu of Section 77 of the Constitution. See also Sections 4 & 283 of the Criminal Procedure Code.
  8. Magistrates’ Courts are established by virtue of section 3 of the Magistrates’ Courts Act. For jurisdiction, see Section 27 of the Magistrates’ Courts Act and Section 7 of the Criminal Procedure Act.
  9. Local Courts are established pursuant to Section 2(1) of the Local Courts Act.
  10. The Juvenile Court is referred to in the Juvenile Offender Act which provides for a separate court for children (under 18).


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